Lockout lifted

[Ed Hochuli 3:16]

by judge, per ESPN

 

Obviously, the owners will appeal again, but hey, hope is hope and I'll take what I can get.

[balta1701-A]

Link

And now comes Nelson's decision to lift the injunction.

 

"[T]he public ramifications of this dispute exceed the abstract principles of the antitrust laws, as professional football involves many layers of tangible economic impact, ranging from broadcast revenues down to concessions sales," she wrote. "And, of course, the public interest represented by the fans of professional football -- who have a strong investment in the 2011 season -- is an intangible interest that weighs against the lockout. In short, this particular employment dispute is far from a purely private argument over compensation."

 

If her ruling stands, it is still unclear exactly what happens next. The collective bargaining agreement has expired, so how the league would handle free agency, trades and offseason workouts at team headquarters, all of which were banned under the lockout, remains to be seen.

 

The NFL even argued to Nelson that stopping the lockout would open all 32 teams up to additional antitrust claims simply for working together to solve the labor dispute. Antitrust claims carry triple damages for any harm proven, meaning hundreds of millions of dollars are at stake.

 

But with appeals expected, the fight seems likely to drag on through the spring and, possibly, into the summer. The closer it gets to August, when training camps and the preseason get into full swing, the more likely it becomes that regular season games will be lost.

I'm not sure the legal logic is wrong, but man that's Bizarre. Thats a whole lot of statutes being brought to bear here.

 

I'm wondering whether there isn't a good chance this drags things out longer, if this decision is stayed on appeal.

[madlithuanian]

I'm honestly not sure what this means other than more litigation and legal BS....

 

I heard one preosn argue that each owner should sell his respective team to the NFL for a $1, then all become equal owners in the NFL. Then all income would be split evenly and would be one entity officially. Adn expansion would handled almost like a stock split,etc... Sounds like a pipe dream, but kind of interesting to ponder...

[dawhizz]

My dream was always that the draft and free agency would happen simultaneously, which would make for the craziest three days in NFL history. Now, there's a chance that might happen . . .

[AZ54]

I can't understand the judge's logic. There is harm to the players but no harm to the owners in terms of loss of revenue and profits? It's ok for a union to strike and the players in essence can collectively bargain when they so choose, and disband whenever they feel it's beneficial, but the owners side can't collectively act on their behalf the same way with a lockout?

[bradjock]

by judge, per ESPN

 

Obviously, the owners will appeal again, but hey, hope is hope and I'll take what I can get.

 

Unless I'm mistaken, they are now operating under the old agreement. I wonder if this has any impact on the guys being drafted or if it's still completely depends on what the union negotiates. If it's under the old deal, a guy like Cam Newton will get like 40 million guaranteed if he goes #1. If there's a rookie wage scale it won't be close to that.

[azbearsfan]

I've been reading that the players have been allowed in the buildings but not been allowed to do any actual work.

 

Will this get worse before it gets better?

[balta1701-A]

Will this get worse before it gets better?

It's possible, but I'm not sure I'd say "Likely".

 

The reality is...the Owners have now suffered 2 straight major defeats in court. If they can't pull out a win on appeal, then basically in the eyes of the U.S. legal system, they have not been acting in good faith. If they win on appeal, then yeah, it gets worse, because both sides keep appealing upwards.

[LT2_3]

It's possible, but I'm not sure I'd say "Likely".

 

The reality is...the Owners have now suffered 2 straight major defeats in court. If they can't pull out a win on appeal, then basically in the eyes of the U.S. legal system, they have not been acting in good faith. If they win on appeal, then yeah, it gets worse, because both sides keep appealing upwards.

 

I disagree on your assessment. First, the only way this is a major defeat is that the judge didn't stay the order during appeal immediately. It still may get a stay from either this judge or the appeals court.

 

Also, just because the lockout is lifted, even if free agency technically starts, doesn't mean the owners have to sign anybody. It's like just because the store is open doesn't mean people have to go buy stuff if they feel like waiting for the prices to come down.

 

And when it comes to things like working out, teams could say "okay, we're your bosses and today we want you to sit in this room all day and do finger exercises."

 

See, the key issue is that the league is able to act like a league because they operate by a series of rules that mostly maintain competitive balance. It's the rules that maintain competitive balance that the players are attacking as anti-trust (or anti-competition) because they hope it will give them more leverage in negotiations. The problem is that unless the court imposes work rules or approves a set of work rules that the league proposes, to shield the league from the anti-trust issues, then the league isn't going to much of anything until the appeals process works it's way through.

 

This is far from over.

[balta1701-A]

Three players showed up at Halas Hall, according to team president Ted Phillips. Place-kicker Robbie Gould, defensive end Israel Idonije and defensive tackle Matt Toeaina were allowed into the building but were restricted from using the facilities. "... [W]e're not opening the building for business yet,' Phillips said. "Hopefully we will soon."

Link

[Chitownhustla]

by judge, per ESPN

 

Obviously, the owners will appeal again, but hey, hope is hope and I'll take what I can get.

 

 

Just get a deal done!!! Please god get this deal done....i just bought PSL season tickets!!!!!!!

[defiantgiant]

I disagree on your assessment. First, the only way this is a major defeat is that the judge didn't stay the order during appeal immediately. It still may get a stay from either this judge or the appeals court.

Maybe, but if the trial court granted a stay pending appeal, that would be monumentally expensive for the owners. The players have asked the court to require the owners to post a $1 billion bond for the stay, to cover their interim damages if they win on appeal. Given the amount of money the players stand to lose during a protracted appeal, $1 billion is actually a fairly reasonable bond, and I'd think the judge would be likely to require it. Also, I'm pretty sure that injunction bonds have to be fully collateralized, which means that the owners would have to put down $1.5 billion (or get a bank to loan it to them) as a bond for the whole time their stay/appeal is going on. Even for the NFL, that's a big chunk of change.

 

Also, I don't think it's very likely that the appeals court would stay the injunction. If they think the trial court abused its discretion in issuing the injunction, they'll just vacate it. Even if they think there's some factual issue that needs to be remanded back to the trial court, they could just vacate the injunction and remand for reconsideration. The only scenario (I think) where the appellate court would need to consider staying the injunction would be if the owners lose AGAIN and they decide it's worth it to appeal to the Supreme Court.

 

Also, just because the lockout is lifted, even if free agency technically starts, doesn't mean the owners have to sign anybody. It's like just because the store is open doesn't mean people have to go buy stuff if they feel like waiting for the prices to come down.

 

And when it comes to things like working out, teams could say "okay, we're your bosses and today we want you to sit in this room all day and do finger exercises."

Maybe an individual team could decide not to sign anybody or order its players to sit on their hands, but if multiple teams get together as a group and decide to do that same thing, it will open them up to even more liability in the players' anti-trust suit. At a minimum, the players could use that conduct in the appellate court to support an unclean hands argument, which would make the owners' case against the injunction much harder. Worst-case scenario, multiple teams colluding to keep the players from working (without a stay of the injunction) might even put the NFL in danger of being held in contempt of court. Unless there's a stay, the league is subject to a lawful court order requiring them to open their doors, and they're both aware of that order and able to comply. If it looks like the teams (as a group) aren't complying with the injunction, they'd risk being held in contempt.

 

If the teams don't get the stay they're asking for, it's not like the court is going to force the Buccaneers to sign X number of free agents or hold two-a-days, but the teams as a whole would have to be extremely careful not to do anything that even looked like a coordinated action to keep the players from working. Best-case scenario, it'd hurt them on appeal. Worst-case scenario, they could face a civil contempt proceeding.

 

See, the key issue is that the league is able to act like a league because they operate by a series of rules that mostly maintain competitive balance. It's the rules that maintain competitive balance that the players are attacking as anti-trust (or anti-competition) because they hope it will give them more leverage in negotiations. The problem is that unless the court imposes work rules or approves a set of work rules that the league proposes, to shield the league from the anti-trust issues, then the league isn't going to much of anything until the appeals process works it's way through.

 

This is far from over.

Well, it's true that the players are challenging the rules that allow the league to act like a league, but that challenge is limited to right now, while there's no certified players' union. I think some of the statements being made about what the players want (like Goodell's op-ed in the WSJ) are seriously overblown: all the league rules that the players are "challenging" will fall right back into place the minute there's a player's union again, and in a legal brief, it's normal to assert every theory that you have a good basis for. What the players are really challenging is the league's right to lock them out indefinitely while CBA negotiations continue.

 

That's the point of de-certification - they're doing it so that they have standing to seek an injunction, in order to force the league not to lock them out. But all of their anti-trust arguments stop the instant the union re-certifies and collective bargaining resumes. The reason Goodell and others are making such exaggerated statements is because they don't really have a case: the NFL conceded (in Powell v. NFL) that the Sherman Anti-Trust Act could apply to restrictions on employment if "the affected employees ceased to be represented by a certified union." That case was the basis for the union decertifying in the Reggie White case back in the '80s, and they were allowed to do it back then. Judge Nelson cited the Powell opinion in her decision, and you can be sure that the players will point it out to the appeals court when the NFL appeals the injunction.

 

Also, I don't know if it'd be that hard for the court to impose work rules: it's been suggested a lot that they'll just take the status quo approach and order the league to operate under the 2010 rules until a new CBA is reached. That seems perfectly sensible to me, and I doubt that the players would argue any anti-trust problems with the league opening their doors in compliance with the injunction.

 

I agree with you that it's a strategic move by the players. I'm sure they don't REALLY want to play with no union, no CBA, no draft, no salary cap, etc. They just needed to end the lockout, so they needed a way to get into court to get their injunction, and it just so happens that this way has been endorsed by the courts (and the NFL) before. Ultimately, I think they just want to make sure they aren't locked out, so the two sides can get back to negotiating on a level playing field. But the fact that it's a strategic move doesn't really make a difference, since the players have made the same strategic move before and it's been upheld. They have precedent on their side, and they have the NFL on record admitting that they can do what they're doing right now.

[madlithuanian]

Interesting....

 

You seem to have a lot of knowledge about these legal matters. Are you in that arena professionally? Or just following in depth on a personal level?

[AZ54]

Maybe, but if the trial court granted a stay pending appeal, that would be monumentally expensive for the owners. The players have asked the court to require the owners to post a $1 billion bond for the stay, to cover their interim damages if they win on appeal. Given the amount of money the players stand to lose during a protracted appeal, $1 billion is actually a fairly reasonable bond, and I'd think the judge would be likely to require it. Also, I'm pretty sure that injunction bonds have to be fully collateralized, which means that the owners would have to put down $1.5 billion (or get a bank to loan it to them) as a bond for the whole time their stay/appeal is going on. Even for the NFL, that's a big chunk of change.

 

Also, I don't think it's very likely that the appeals court would stay the injunction. If they think the trial court abused its discretion in issuing the injunction, they'll just vacate it. Even if they think there's some factual issue that needs to be remanded back to the trial court, they could just vacate the injunction and remand for reconsideration. The only scenario (I think) where the appellate court would need to consider staying the injunction would be if the owners lose AGAIN and they decide it's worth it to appeal to the Supreme Court.

 

 

Maybe an individual team could decide not to sign anybody or order its players to sit on their hands, but if multiple teams get together as a group and decide to do that same thing, it will open them up to even more liability in the players' anti-trust suit. At a minimum, the players could use that conduct in the appellate court to support an unclean hands argument, which would make the owners' case against the injunction much harder. Worst-case scenario, multiple teams colluding to keep the players from working (without a stay of the injunction) might even put the NFL in danger of being held in contempt of court. Unless there's a stay, the league is subject to a lawful court order requiring them to open their doors, and they're both aware of that order and able to comply. If it looks like the teams (as a group) aren't complying with the injunction, they'd risk being held in contempt.

 

If the teams don't get the stay they're asking for, it's not like the court is going to force the Buccaneers to sign X number of free agents or hold two-a-days, but the teams as a whole would have to be extremely careful not to do anything that even looked like a coordinated action to keep the players from working. Best-case scenario, it'd hurt them on appeal. Worst-case scenario, they could face a civil contempt proceeding.

 

 

Well, it's true that the players are challenging the rules that allow the league to act like a league, but that challenge is limited to right now, while there's no certified players' union. I think some of the statements being made about what the players want (like Goodell's op-ed in the WSJ) are seriously overblown: all the league rules that the players are "challenging" will fall right back into place the minute there's a player's union again, and in a legal brief, it's normal to assert every theory that you have a good basis for. What the players are really challenging is the league's right to lock them out indefinitely while CBA negotiations continue.

 

That's the point of de-certification - they're doing it so that they have standing to seek an injunction, in order to force the league not to lock them out. But all of their anti-trust arguments stop the instant the union re-certifies and collective bargaining resumes. The reason Goodell and others are making such exaggerated statements is because they don't really have a case: the NFL conceded (in Powell v. NFL) that the Sherman Anti-Trust Act could apply to restrictions on employment if "the affected employees ceased to be represented by a certified union." That case was the basis for the union decertifying in the Reggie White case back in the '80s, and they were allowed to do it back then. Judge Nelson cited the Powell opinion in her decision, and you can be sure that the players will point it out to the appeals court when the NFL appeals the injunction.

 

Also, I don't know if it'd be that hard for the court to impose work rules: it's been suggested a lot that they'll just take the status quo approach and order the league to operate under the 2010 rules until a new CBA is reached. That seems perfectly sensible to me, and I doubt that the players would argue any anti-trust problems with the league opening their doors in compliance with the injunction.

 

I agree with you that it's a strategic move by the players. I'm sure they don't REALLY want to play with no union, no CBA, no draft, no salary cap, etc. They just needed to end the lockout, so they needed a way to get into court to get their injunction, and it just so happens that this way has been endorsed by the courts (and the NFL) before. Ultimately, I think they just want to make sure they aren't locked out, so the two sides can get back to negotiating on a level playing field. But the fact that it's a strategic move doesn't really make a difference, since the players have made the same strategic move before and it's been upheld. They have precedent on their side, and they have the NFL on record admitting that they can do what they're doing right now.

 

 

Either there is a union or there isn't a union. IMO because the players decided to go this route in court there is no union and therefore nobody to negotiate with except each individual player and his agent.

 

 

 

[selection7]

I also want to ask you, defiantgiant, since you obviously are or have been in the legal field, is the real issue here that these players have contracts? Never in my wildest dreams would I have thought an employer could be barred from firing employees who ask for too much money, but then I realised that the players are ok with the way things are now (though they'd be willing to make some changes, they nevertheless would find status quo acceptable), it's the owner's who really want change, so that means the owners signed contracts with these players and owners are now essentially refusing to honor them. At its core, all the legalese aside, is that why the NFL doesn't just get to say "players, go away"?

 

Also, I see references from time to time of collusion or antitrust or whatever the right words are... This isn't exactly like the only 5 or 6 companies that make computer memory colluding to keep prices high. It wouldn't surprise me if the NFL represents well less than 5% of the professional football jobs out there. If Robbie Gould doesn't like it, the Toronto Argonauts and the Mobile Sharks have a spot saved for him. It seems really wild to me to suggest that the NFL holds a monopoly only because they pay their players so well. I thought about that with respect to underclassmen coming out early in the draft. Seems to me the NFL should be able to deny even seniors to come out early if they want. The NFL may not exactly be small business owners, but it their business nontheless. If Blaine Gabbert doesn't like it, he can join Robbie on the Mobile Sharks. Right?

[madlithuanian]

Interesting questions...I hope defiantgiant can answer. (It does appear he has an inside track to leaglese...) The only legal thing I know is that "LA Law" was a TV show in the 80's...

 

I also want to ask you, defiantgiant, since you obviously are or have been in the legal field, is the real issue here that these players have contracts? Never in my wildest dreams would I have thought an employer could be barred from firing employees who ask for too much money, but then I realised that the players are ok with the way things are now (though they'd be willing to make some changes, they nevertheless would find status quo acceptable), it's the owner's who really want change, so that means the owners signed contracts with these players and owners are now essentially refusing to honor them. At its core, all the legalese aside, is that why the NFL doesn't just get to say "players, go away"?

 

Also, I see references from time to time of collusion or antitrust or whatever the right words are... This isn't exactly like the only 5 or 6 companies that make computer memory colluding to keep prices high. It wouldn't surprise me if the NFL represents well less than 5% of the professional football jobs out there. If Robbie Gould doesn't like it, the Toronto Argonauts and the Mobile Sharks have a spot saved for him. It seems really wild to me to suggest that the NFL holds a monopoly only because they pay their players so well. I thought about that with respect to underclassmen coming out early in the draft. Seems to me the NFL should be able to deny even seniors to come out early if they want. The NFL may not exactly be small business owners, but it their business nontheless. If Blaine Gabbert doesn't like it, he can join Robbie on the Mobile Sharks. Right?

 

[Bears4Ever_34]

How can you appeal an appeal? Is that even legal?

[defiantgiant]

Interesting....

 

You seem to have a lot of knowledge about these legal matters. Are you in that arena professionally? Or just following in depth on a personal level?

Well, I'm not involved professionally yet...I'm just a second-year law student. But one of my courses last semester was on legal remedies, so I've been really interested in the injunction part of this litigation, since it brings up a lot of the issues that we discussed in that class.

 

I only know a little bit about anti-trust law, though, so if I've got anything wrong, somebody who knows more about that field please pipe up and tell me. When it comes to the anti-trust stuff, I'm mostly just reading the Sherman Act against some past cases and Judge Nelson's ruling.

 

I also want to ask you, defiantgiant, since you obviously are or have been in the legal field, is the real issue here that these players have contracts? Never in my wildest dreams would I have thought an employer could be barred from firing employees who ask for too much money, but then I realised that the players are ok with the way things are now (though they'd be willing to make some changes, they nevertheless would find status quo acceptable), it's the owner's who really want change, so that means the owners signed contracts with these players and owners are now essentially refusing to honor them. At its core, all the legalese aside, is that why the NFL doesn't just get to say "players, go away"?

No, I don't think the players' contracts are really at issue. Each individual player has a contract with an individual employer: his team. The issue here is the behavior of all of those employers as a group. Again, I'm not an antitrust expert at all, but I think I've got the big picture right:

 

The most helpful question to ask isn't "why can't the NFL teams, as a group, tell the players to go away right now?", it's "why would they ever be allowed to do that?" Ordinarily, a bunch of employers getting together and agreeing among themselves to fix salaries or lock out employees would probably be an antitrust violation. The reason that the NFL is allowed to do things like that is because of an antitrust exemption. They normally get that exemption because they have a CBA that they negotiated with the players union. Once the CBA expires and the union disbands, they don't get that exemption any more.

 

Also, I see references from time to time of collusion or antitrust or whatever the right words are... This isn't exactly like the only 5 or 6 companies that make computer memory colluding to keep prices high. It wouldn't surprise me if the NFL represents well less than 5% of the professional football jobs out there. If Robbie Gould doesn't like it, the Toronto Argonauts and the Mobile Sharks have a spot saved for him. It seems really wild to me to suggest that the NFL holds a monopoly only because they pay their players so well. I thought about that with respect to underclassmen coming out early in the draft. Seems to me the NFL should be able to deny even seniors to come out early if they want. The NFL may not exactly be small business owners, but it their business nontheless. If Blaine Gabbert doesn't like it, he can join Robbie on the Mobile Sharks. Right?

The shortest answer is that you don't need to have a monopoly to violate the Sherman Antitrust Act. Section 2 of the Act deals with monopolizing an industry, but Section 1 makes it a violation to make any "contract, combination in the form of trust or otherwise, or conspiracy" to restrain trade. To violate Section 1, you need to have three things:

(1) an agreement

(2) that unreasonably restrains competition, and

(3) that affects interstate commerce.

 

So an agreement or conspiracy among the individual NFL teams that restrains competition in the pro football labor market would normally be an antitrust violation. The only reason that they can actually do things like set a league-wide minimum salary is because the CBA exists. One main case on this point, if you want to read it, is Brown v. Pro Football, Inc.

 

In Brown, the DC Circuit held that the NFL was allowed to set league-wide practice squad salaries, because of an exemption to antitrust law (called the "nonstatutory labor exemption") for employment terms governed by a CBA. That exemption says, basically, that restraints on trade created by a CBA are immune from antitrust law as long as they only affect the parties to the CBA. Instead, they're governed by labor law. The court in Brown also explicitly lays out the players' options in a situation like this one: either stay a union and pursue a remedy under federal labor law (bringing a complaint before the NLRB or striking, for example) or de-certify their union and sue under antitrust law.

 

It's kind of murky (to me, at least) what happens when the CBA expires and the union stays certified (Powell v. NFL and McNeil v. NFL deal with that to some extent) but that's not what's happening right now. Right now there's no CBA and no certified union, and all the cases make it pretty clear (and the NFL even admitted this in Powell) that when that happens, the normal antitrust rules apply to the NFL teams. Without a union and a CBA, they're like 32 individual employers, which means they can't get together to fix wages or lock out employees.

[madlithuanian]

Much appreciated! You're knowledge is certainly welcomed by me at minimum! Thank you for sharing your thoughts on these issues.

 

 

[AZ54]

This would be all fine if the union wasn't still acting as a union. In that case we'd go back to the old days of each team fends for itself financially, as does each player. However, I don't believe the union wants that and would work very quickly to stop that if things started heading in that direction. It would mean a lot less benefits for players, both active and retired. When the union fires DeMaurice Smith and player reps quit acting and talking like player reps (player reps don't exist when you don't have a union) then I'll believe the union is serious about their actions. Otherwise it's just a scam to get owners to pay them during the offseason. I don't really care that the players don't like the offer from the owners, that's their decision. I just don't like this tactic. If the situation were reversed: The players went on strike and then the owners disbanded as a league it would be viewed as union busting especially once they formed a new league.

 

At least the owners admit they want to continue with the similar setup of collective bargaining. I don't really know what the players want anymore but perhaps they should get their wish and see the anti-trust exemption removed and the league disbanded.

 

 

[lemonej]

This would be all fine if the union wasn't still acting as a union. In that case we'd go back to the old days of each team fends for itself financially, as does each player. However, I don't believe the union wants that and would work very quickly to stop that if things started heading in that direction. It would mean a lot less benefits for players, both active and retired. When the union fires DeMaurice Smith and player reps quit acting and talking like player reps (player reps don't exist when you don't have a union) then I'll believe the union is serious about their actions. Otherwise it's just a scam to get owners to pay them during the offseason. I don't really care that the players don't like the offer from the owners, that's their decision. I just don't like this tactic. If the situation were reversed: The players went on strike and then the owners disbanded as a league it would be viewed as union busting especially once they formed a new league.

 

At least the owners admit they want to continue with the similar setup of collective bargaining. I don't really know what the players want anymore but perhaps they should get their wish and see the anti-trust exemption removed and the league disbanded.

AZ54 this is where it gets tricky when they use the word de-certify which is very vague and is almost saying that we are not a union but we do have the right to negotiate. I heard an interview with a former player that was a member of the union's executive council that said that the union has been de-certified once before and that they and the league operated with the union in this classification. I'm not sure if this was in the late 80's after the 87 strike or just prior to the last CBA being agreed to.

[selection7]

Great, thorough reply!

Without a union and a CBA, they're like 32 individual employers, which means they can't get together to fix wages or lock out employees.

That was my problem...I was thinking of the NFL as a single employer for which there are 32 different "plant managers", for example, to use an industry analogy. But, true, they are really 32 separate entities that mostly agree to work together.

...and now I understand the significance of MadLithuanian's reference to the owner's potential to each sell their teams to the NFL for 1$; under those wild circumstances they would all then become one company.

 

The shortest answer is that you don't need to have a monopoly to violate the Sherman Antitrust Act. Section 2 of the Act deals with monopolizing an industry, but Section 1 makes it a violation to make any "contract, combination in the form of trust or otherwise, or conspiracy" to restrain trade. To violate Section 1, you need to have three things:

(1) an agreement

(2) that unreasonably restrains competition, and

(3) that affects interstate commerce.

 

So an agreement or conspiracy among the individual NFL teams that restrains competition in the pro football labor market would normally be an antitrust violation. The only reason that they can actually do things like set a league-wide minimum salary is because the CBA exists.

...

That makes sense except if all three conditions must be met, what about closing your doors of business unreasonably constrains competition?? At first glance, that's seems ridiculous. If anything, competing leagues stand to gain bigtime! by an NFL holdout. The only thing to be unreasonably restrained would be the players salaries, lol. I could see the NFL arguing for the courts to especially recoginze the positive of just how much more competitive the pro football market would become if the NFL shut down for the forseeable future.

 

Now, I can envison the existance of some sort of labor law that prevents companies from getting together and agreeing to not pay their employees over X amount, for example, regardless of whether the employees have the option to go elsewhere with their skills. That seems not the same as antitrust though.